From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
January 2, 2001 and January 22, 2002]
[CITE: 17USC107]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in copies
or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall
include--
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
factors.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546; Pub.
L. 101-650, title VI, Sec. 607, Dec. 1, 1990, 104 Stat. 5132; Pub. L.
102-492, Oct. 24, 1992, 106 Stat. 3145.)
Historical and Revision Notes
house report no. 94-1476
General Background of the Problem. The judicial doctrine of fair
use, one of the most important and well-established limitations on the
exclusive right of copyright owners, would be given express statutory
recognition for the first time in section 107. The claim that a
defendant's acts constituted a fair use rather than an infringement has
been raised as a defense in innumerable copyright actions over the
years, and there is ample case law recognizing the existence of the
doctrine and applying it. The examples enumerated at page 24 of the
Register's 1961 Report, while by no means exhaustive, give some idea of
the sort of activities the courts might regard as fair use under the
circumstances: ``quotation of excerpts in a review or criticism for
purposes of illustration or comment; quotation of short passages in a
scholarly or technical work, for illustration or clarification of the
author's observations; use in a parody of some of the content of the
work parodied; summary of an address or article, with brief quotations,
in a news report; reproduction by a library of a portion of a work to
replace part of a damaged copy; reproduction by a teacher or student of
a small part of a work to illustrate a lesson; reproduction of a work in
legislative or judicial proceedings or reports; incidental and
fortuitous reproduction, in a newsreel or broadcast, of a work located
in the scene of an event being reported.''
Although the courts have considered and ruled upon the fair use
doctrine over and over again, no real definition of the concept has ever
emerged. Indeed, since the doctrine is an equitable rule of reason, no
generally applicable definition is possible, and each case raising the
question must be decided on its own facts. On the other hand, the courts
have evolved a set of criteria which, though in no case definitive or
determinative, provide some gauge for balancing the equities. These
criteria have been stated in various ways, but essentially they can all
be reduced to the four standards which have been adopted in section 107:
``(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes; (2)
the nature of the copyrighted work; (3) the amount and substantiality of
the portion used in relation to the copyrighted work as a whole; and (4)
the effect of the use upon the potential market for or value of the
copyrighted work.''
These criteria are relevant in determining whether the basic
doctrine of fair use, as stated in the first sentence of section 107,
applies in a particular case: ``Notwithstanding the provisions of
section 106, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment, news
reporting, teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright.''
The specific wording of section 107 as it now stands is the result
of a process of accretion, resulting from the long controversy over the
related problems of fair use and the reproduction (mostly by
photocopying) of copyrighted material for educational and scholarly
purposes. For example, the reference to fair use ``by reproduction in
copies or phonorecords or by any other means'' is mainly intended to
make clear that the doctrine has as much application to photocopying and
taping as to older forms of use; it is not intended to give these kinds
of reproduction any special status under the fair use provision or to
sanction any reproduction beyond the normal and reasonable limits of
fair use. Similarly, the newly-added reference to ``multiple copies for
classroom use'' is a recognition that, under the proper circumstances of
fairness, the doctrine can be applied to reproductions of multiple
copies for the members of a class.
The Committee has amended the first of the criteria to be
considered--``the purpose and character of the use''--to state
explicitly that this factor includes a consideration of ``whether such
use is of a commercial nature or is for non-profit educational
purposes.'' This amendment is not intended to be interpreted as any sort
of not-for-profit limitation on educational uses of copyrighted works.
It is an express recognition that, as under the present law, the
commercial or non-profit character of an activity, while not conclusive
with respect to fair use, can and should be weighed along with other
factors in fair use decisions.
General Intention Behind the Provision. The statement of the fair
use doctrine in section 107 offers some guidance to users in determining
when the principles of the doctrine apply. However, the endless variety
of situations and combinations of circumstances that can rise in
particular cases precludes the formulation of exact rules in the
statute. The bill endorses the purpose and general scope of the judicial
doctrine of fair use, but there is no disposition to freeze the doctrine
in the statute, especially during a period of rapid technological
change. Beyond a very broad statutory explanation of what fair use is
and some of the criteria applicable to it, the courts must be free to
adapt the doctrine to particular situations on a case-by-case basis.
Section 107 is intended to restate the present judicial doctrine of fair
use, not to change, narrow, or enlarge it in any way.
Intention as to Classroom Reproduction. Although the works and uses
to which the doctrine of fair use is applicable are as broad as the
copyright law itself, most of the discussion of section 107 has centered
around questions of classroom reproduction, particularly photocopying.
The arguments on the question are summarized at pp. 30-31 of this
Committee's 1967 report (H.R. Rep. No. 83, 90th Cong., 1st Sess.), and
have not changed materially in the intervening years.
The Committee also adheres to its earlier conclusion, that ``a
specific exemption freeing certain reproductions of copyrighted works
for educational and scholarly purposes from copyright control is not
justified.'' At the same time the Committee recognizes, as it did in
1967, that there is a ``need for greater certainty and protection for
teachers.'' In an effort to meet this need the Committee has not only
adopted further amendments to section 107, but has also amended section
504(c) to provide innocent teachers and other non-profit users of
copyrighted material with broad insulation against unwarranted liability
for infringement. The latter amendments are discussed below in
connection with Chapter 5 of the bill [Sec. 501 et seq. of this title].
In 1967 the Committee also sought to approach this problem by
including, in its report, a very thorough discussion of ``the
considerations lying behind the four criteria listed in the amended
section 107, in the context of typical classroom situations arising
today.'' This discussion appeared on pp. 32-35 of the 1967 report, and
with some changes has been retained in the Senate report on S. 22 (S.
Rep. No. 94-473, pp. 63-65). The Committee has reviewed this discussion,
and considers that it still has value as an analysis of various aspects
of the problem.
At the Judiciary Subcommittee hearings in June 1975, Chairman
Kastenmeier and other members urged the parties to meet together
independently in an effort to achieve a meeting of the minds as to
permissible educational uses of copyrighted material. The response to
these suggestions was positive, and a number of meetings of three
groups, dealing respectively with classroom reproduction of printed
material, music, and audio-visual material, were held beginning in
September 1975.
In a joint letter to Chairman Kastenmeier, dated March 19, 1976, the
representatives of the Ad Hoc Committee of Educational Institutions and
Organizations on Copyright Law Revision, and of the Authors League of
America, Inc., and the Association of American Publishers, Inc., stated:
You may remember that in our letter of March 8, 1976 we told you
that the negotiating teams representing authors and publishers and
the Ad Hoc Group had reached tentative agreement on guidelines to
insert in the Committee Report covering educational copying from
books and periodicals under Section 107 of H.R. 2223 and S. 22 [this
section], and that as part of that tentative agreement each side
would accept the amendments to Sections 107 and 504 [this section
and section 504 of this title] which were adopted by your
Subcommittee on March 3, 1976.
We are now happy to tell you that the agreement has been
approved by the principals and we enclose a copy herewith. We had
originally intended to translate the agreement into language
suitable for inclusion in the legislative report dealing with
Section 107 [this section], but we have since been advised by
committee staff that this will not be necessary.
As stated above, the agreement refers only to copying from books
and periodicals, and it is not intended to apply to musical or
audiovisual works.
The full text of the agreement is as follows:
Agreement on Guidelines for Classroom Copying in Not-For-Profit
Educational Institutions
with respect to books and periodicals
The purpose of the following guidelines is to state the minimum
and not the maximum standards of educational fair use under Section
107 of H.R. 2223 [this section]. The parties agree that the
conditions determining the extent of permissible copying for
educational purposes may change in the future; that certain types of
copying permitted under these guidelines may not be permissible in
the future; and conversely that in the future other types of copying
not permitted under these guidelines may be permissible under
revised guidelines.
Moreover, the following statement of guidelines is not intended
to limit the types of copying permitted under the standards of fair
use under judicial decision and which are stated in Section 107 of
the Copyright Revision Bill [this section]. There may be instances
in which copying which does not fall within the guidelines stated
below may nonetheless be permitted under the criteria of fair use.
guidelines
I. Single Copying for Teachers
A single copy may be made of any of the following by or for a
teacher at his or her individual request for his or her scholarly
research or use in teaching or preparation to teach a class:
A. A chapter from a book;
B. An article from a periodical or newspaper;
C. A short story, short essay or short poem, whether or not from
a collective work;
D. A chart, graph, diagram, drawing, cartoon or picture from a
book, periodical, or newspaper;
II. Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy
per pupil in a course) may be made by or for the teacher giving the
course for classroom use or discussion; provided that:
A. The copying meets the tests of brevity and spontaneity as
defined below; and,
B. Meets the cumulative effect test as defined below; and
C. Each copy includes a notice of copyright.
Definitions
Brevity
(i) Poetry: (a) A complete poem if less than 250 words and if
printed on not more than two pages or, (b) from a longer poem, an
excerpt of not more than 250 words.
(ii) Prose: (a) Either a complete article, story or essay of
less than 2,500 words, or (b) an excerpt from any prose work of not
more than 1,000 words or 10% of the work, whichever is less, but in
any event a minimum of 500 words.
[Each of the numerical limits stated in ``i'' and ``ii'' above
may be expanded to permit the completion of an unfinished line of a
poem or of an unfinished prose paragraph.]
(iii) Illustration: One chart, graph, diagram, drawing, cartoon
or picture per book or per periodical issue.
(iv) ``Special'' works: Certain works in poetry, prose or in
``poetic prose'' which often combine language with illustrations and
which are intended sometimes for children and at other times for a
more general audience fall short of 2,500 words in their entirety.
Paragraph ``ii'' above notwithstanding such ``special works'' may
not be reproduced in their entirety; however, an excerpt comprising
not more than two of the published pages of such special work and
containing not more than 10% of the words found in the text thereof,
may be reproduced.
Spontaneity
(i) The copying is at the instance and inspiration of the
individual teacher, and
(ii) The inspiration and decision to use the work and the moment
of its use for maximum teaching effectiveness are so close in time
that it would be unreasonable to expect a timely reply to a request
for permission.
Cumulative Effect
(i) The copying of the material is for only one course in the
school in which the copies are made.
(ii) Not more than one short poem, article, story, essay or two
excerpts may be copied from the same author, nor more than three
from the same collective work or periodical volume during one class
term.
(iii) There shall not be more than nine instances of such
multiple copying for one course during one class term.
[The limitations stated in ``ii'' and ``iii'' above shall not
apply to current news periodicals and newspapers and current news
sections of other periodicals.]
III. Prohibitions as to I and II Above
Notwithstanding any of the above, the following shall be
prohibited:
(A) Copying shall not be used to create or to replace or
substitute for anthologies, compilations or collective works. Such
replacement or substitution may occur whether copies of various
works or excerpts therefrom are accumulated or reproduced and used
separately.
(B) There shall be no copying of or from works intended to be
``consumable'' in the course of study or of teaching. These include
workbooks, exercises, standardized tests and test booklets and
answer sheets and like consumable material.
(C) Copying shall not:
(a) substitute for the purchase of books, publishers'
reprints or periodicals;
(b) be directed by higher authority;
(c) be repeated with respect to the same item by the same
teacher from term to term.
(D) No charge shall be made to the student beyond the actual
cost of the photocopying.
Agreed March 19, 1976.
Ad Hoc Committee on Copyright Law Revision:
By Sheldon Elliott Steinbach.
Author-Publisher Group:
Authors League of America:
By Irwin Karp, Counsel.
Association of American Publishers, Inc.:
By Alexander C. Hoffman.
Chairman, Copyright Committee.
In a joint letter dated April 30, 1976, representatives of the Music
Publishers' Association of the United States, Inc., the National Music
Publishers' Association, Inc., the Music Teachers National Association,
the Music Educators National Conference, the National Association of
Schools of Music, and the Ad Hoc Committee on Copyright Law Revision,
wrote to Chairman Kastenmeier as follows:
During the hearings on H.R. 2223 in June 1975, you and several
of your subcommittee members suggested that concerned groups should
work together in developing guidelines which would be helpful to
clarify Section 107 of the bill [this section].
Representatives of music educators and music publishers delayed
their meetings until guidelines had been developed relative to books
and periodicals. Shortly after that work was completed and those
guidelines were forwarded to your subcommittee, representatives of
the undersigned music organizations met together with
representatives of the Ad Hoc Committee on Copyright Law Revision to
draft guidelines relative to music.
We are very pleased to inform you that the discussions thus have
been fruitful on the guidelines which have been developed. Since
private music teachers are an important factor in music education,
due consideration has been given to the concerns of that group.
We trust that this will be helpful in the report on the bill to
clarify Fair Use as it applies to music.
The text of the guidelines accompanying this letter is as follows:
guidelines for educational uses of music
The purpose of the following guidelines is to state the minimum
and not the maximum standards of educational fair use under Section
107 of H.R. 2223 [this section]. The parties agree that the
conditions determining the extent of permissible copying for
educational purposes may change in the future; that certain types of
copying permitted under these guidelines may not be permissible in
the future, and conversely that in the future other types of copying
not permitted under these guidelines may be permissible under
revised guidelines.
Moreover, the following statement of guidelines is not intended
to limit the types of copying permitted under the standards of fair
use under judicial decision and which are stated in Section 107 of
the Copyright Revision Bill [this section]. There may be instances
in which copying which does not fall within the guidelines stated
below may nonetheless be permitted under the criteria of fair use.
A. Permissible Uses
1. Emergency copying to replace purchased copies which for any
reason are not available for an imminent performance provided
purchased replacement copies shall be substituted in due course.
2. (a) For academic purposes other than performance, multiple
copies of excerpts of works may be made, provided that the excerpts
do not comprise a part of the whole which would constitute a
performable unit such as a section, movement or aria, but in no case
more than 10% of the whole work. The number of copies shall not
exceed one copy per pupil.
(b) For academic purposes other than performance, a single copy
of an entire performable unit (section, movement, aria, etc.) that
is, (1) confirmed by the copyright proprietor to be out of print or
(2) unavailable except in a larger work, may be made by or for a
teacher solely for the purpose of his or her scholarly research or
in preparation to teach a class.
3. Printed copies which have been purchased may be edited or
simplified provided that the fundamental character of the work is
not distorted or the lyrics, if any, altered or lyrics added if none
exist.
4. A single copy of recordings of performances by students may
be made for evaluation or rehearsal purposes and may be retained by
the educational institution or individual teacher.
5. A single copy of a sound recording (such as a tape, disc or
cassette) of copyrighted music may be made from sound recordings
owned by an educational institution or an individual teacher for the
purpose of constructing aural exercises or examinations and may be
retained by the educational institution or individual teacher. (This
pertains only to the copyright of the music itself and not to any
copyright which may exist in the sound recording.)
B. Prohibitions
1. Copying to create or replace or substitute for anthologies,
compilations or collective works.
2. Copying of or from works intended to be ``consumable'' in the
course of study or of teaching such as workbooks, exercises,
standardized tests and answer sheets and like material.
3. Copying for the purpose of performance, except as in A(1)
above.
4. Copying for the purpose of substituting for the purchase of
music, except as in A(1) and A(2) above.
5. Copying without inclusion of the copyright notice which
appears on the printed copy.
The problem of off-the-air taping for nonprofit classroom use of
copyrighted audiovisual works incorporated in radio and television
broadcasts has proved to be difficult to resolve. The Committee believes
that the fair use doctrine has some limited application in this area,
but it appears that the development of detailed guidelines will require
a more thorough exploration than has so far been possible of the needs
and problems of a number of different interests affected, and of the
various legal problems presented. Nothing in section 107 or elsewhere in
the bill is intended to change or prejudge the law on the point. On the
other hand, the Committee is sensitive to the importance of the problem,
and urges the representatives of the various interests, if possible
under the leadership of the Register of Copyrights, to continue their
discussions actively and in a constructive spirit. If it would be
helpful to a solution, the Committee is receptive to undertaking further
consideration of the problem in a future Congress.
The Committee appreciates and commends the efforts and the
cooperative and reasonable spirit of the parties who achieved the agreed
guidelines on books and periodicals and on music. Representatives of the
American Association of University Professors and of the Association of
American Law Schools have written to the Committee strongly criticizing
the guidelines, particularly with respect to multiple copying, as being
too restrictive with respect to classroom situations at the university
and graduate level. However, the Committee notes that the Ad Hoc group
did include representatives of higher education, that the stated
``purpose of the * * * guidelines is to state the minimum and not the
maximum standards of educational fair use'' and that the agreement
acknowledges ``there may be instances in which copying which does not
fall within the guidelines * * * may nonetheless be permitted under the
criteria of fair use.''
The Committee believes the guidelines are a reasonable
interpretation of the minimum standards of fair use. Teachers will know
that copying within the guidelines is fair use. Thus, the guidelines
serve the purpose of fulfilling the need for greater certainty and
protection for teachers. The Committee expresses the hope that if there
are areas where standards other than these guidelines may be
appropriate, the parties will continue their efforts to provide
additional specific guidelines in the same spirit of good will and give
and take that has marked the discussion of this subject in recent
months.
Reproduction and Uses for Other Purposes. The concentrated attention
given the fair use provision in the context of classroom teaching
activities should not obscure its application in other areas. It must be
emphasized again that the same general standards of fair use are
applicable to all kinds of uses of copyrighted material, although the
relative weight to be given them will differ from case to case.
The fair use doctrine would be relevant to the use of excerpts from
copyrighted works in educational broadcasting activities not exempted
under section 110(2) or 112, and not covered by the licensing provisions
of section 118. In these cases the factors to be weighed in applying the
criteria of this section would include whether the performers,
producers, directors, and others responsible for the broadcast were
paid, the size and nature of the audience, the size and number of
excerpts taken and, in the case of recordings made for broadcast, the
number of copies reproduced and the extent of their reuse or exchange.
The availability of the fair use doctrine to educational broadcasters
would be narrowly circumscribed in the case of motion pictures and other
audiovisual works, but under appropriate circumstances it could apply to
the nonsequential showing of an individual still or slide, or to the
performance of a short excerpt from a motion picture for criticism or
comment.
Another special instance illustrating the application of the fair
use doctrine pertains to the making of copies or phonorecords of works
in the special forms needed for the use of blind persons. These special
forms, such as copies in Braille and phonorecords of oral readings
(talking books), are not usually made by the publishers for commercial
distribution. For the most part, such copies and phonorecords are made
by the Library of Congress' Division for the Blind and Physically
Handicapped with permission obtained from the copyright owners, and are
circulated to blind persons through regional libraries covering the
nation. In addition, such copies and phonorecords are made locally by
individual volunteers for the use of blind persons in their communities,
and the Library of Congress conducts a program for training such
volunteers. While the making of multiple copies or phonorecords of a
work for general circulation requires the permission of the copyright
owner, a problem addressed in section 710 of the bill, the making of a
single copy or phonorecord by an individual as a free service for blind
persons would properly be considered a fair use under section 107.
A problem of particular urgency is that of preserving for posterity
prints of motion pictures made before 1942. Aside from the deplorable
fact that in a great many cases the only existing copy of a film has
been deliberately destroyed, those that remain are in immediate danger
of disintegration; they were printed on film stock with a nitrate base
that will inevitably decompose in time. The efforts of the Library of
Congress, the American Film Institute, and other organizations to rescue
and preserve this irreplaceable contribution to our cultural life are to
be applauded, and the making of duplicate copies for purposes of
archival preservation certainly falls within the scope of ``fair use.''
When a copyrighted work contains unfair, inaccurate, or derogatory
information concerning an individual or institution, the individual or
institution may copy and reproduce such parts of the work as are
necessary to permit understandable comment on the statements made in the
work.
The Committee has considered the question of publication, in
Congressional hearings and documents, of copyrighted material. Where the
length of the work or excerpt published and the number of copies
authorized are reasonable under the circumstances, and the work itself
is directly relevant to a matter of legitimate legislative concern, the
Committee believes that the publication would constitute fair use.
During the consideration of the revision bill in the 94th Congress
it was proposed that independent newsletters, as distinguished from
house organs and publicity or advertising publications, be given
separate treatment. It is argued that newsletters are particularly
vulnerable to mass photocopying, and that most newsletters have fairly
modest circulations. Whether the copying of portions of a newsletter is
an act of infringement or a fair use will necessarily turn on the facts
of the individual case. However, as a general principle, it seems clear
that the scope of the fair use doctrine should be considerably narrower
in the case of newsletters than in that of either mass-circulation
periodicals or scientific journals. The commercial nature of the user is
a significant factor in such cases: Copying by a profit-making user of
even a small portion of a newsletter may have a significant impact on
the commercial market for the work.
The Committee has examined the use of excerpts from copyrighted
works in the art work of calligraphers. The committee believes that a
single copy reproduction of an excerpt from a copyrighted work by a
calligrapher for a single client does not represent an infringement of
copyright. Likewise, a single reproduction of excerpts from a
copyrighted work by a student calligrapher or teacher in a learning
situation would be a fair use of the copyrighted work.
The Register of Copyrights has recommended that the committee report
describe the relationship between this section and the provisions of
section 108 relating to reproduction by libraries and archives. The
doctrine of fair use applies to library photocopying, and nothing
contained in section 108 ``in any way affects the right of fair use.''
No provision of section 108 is intended to take away any rights existing
under the fair use doctrine. To the contrary, section 108 authorizes
certain photocopying practices which may not qualify as a fair use.
The criteria of fair use are necessarily set forth in general terms.
In the application of the criteria of fair use to specific photocopying
practices of libraries, it is the intent of this legislation to provide
an appropriate balancing of the rights of creators, and the needs of
users.
Amendments
1992--Pub. L. 102-492 inserted at end ``The fact that a work is
unpublished shall not itself bar a finding of fair use if such finding
is made upon consideration of all the above factors.''
1990--Pub. L. 101-650 substituted ``sections 106 and 106A'' for
``section 106'' in introductory provisions.
Effective Date of 1990 Amendment
Amendment by Pub. L. 101-650 effective 6 months after Dec. 1, 1990,
see section 610 of Pub. L. 101-650, set out as an Effective Date note
under section 106A of this title.
Section Referred to in Other Sections
This section is referred to in sections 106, 106A, 108, 118, 501,
504, 511 of this title; title 18 section 2319.